CEI Calls for Acting Attorney General to Recognize that Commission on Civil Rights Lacks Legal Authority to Operate

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If Congress Wants the Commission to Continue, It Should Reauthorize It

December 13, 2018

The Competitive Enterprise Institute (CEI) today formally requested the acting Attorney General to find that the U.S. Commission on Civil Rights (USCCR) has no legal authority from Congress to carry on its activities. In a letter filed with the acting AG, CEI pointed out that the Commission’s authorization from Congress had expired more than 22 years ago, in October 1996. Since that time, Congress has never reauthorized the Commission. While Congress has continued to appropriate funding for the Commission, Supreme Court precedent makes it clear that appropriation bills do not change the underlying substantive law that created the agency without a clear statement to the contrary.

CEI also called on the acting AG to notify the U.S. Treasury that its disbursement of funding to the Commission was illegal.

CEI’s letter states that, to its knowledge, the Commission on Civil Rights is the only federal agency in operation whose entire enabling statute has expired. CEI’s request is not based on any disagreement with the Commission, but on a basic rule of law: agencies are created by Congress, and their continued existence requires that the laws creating it stay in effect. If Congress wishes the Commission to remain in operation, it can easily do so by simply reauthorizing it.

CEI requested that, if the AG does not choose to act directly on this matter, then he should authorize CEI to bring a special lawsuit (known as quo warranto) to address the matter.

CEI attorney Devin Watkins said: “All we are asking the acting Attorney General to do is apply the law passed by Congress and signed by President Clinton. It appears the U.S. Commission on Civil Rights is the only agency that has no substantive statutory authority for its continued existence. In a nation that respects the rule of law, not men, no agency, regardless of the merits of its mission, should be allowed to operate outside the law.”

CEI president Kent Lassman said: “The Constitution clearly requires that all federal offices ‘shall be established by law.’”

Former Commissioner (2001-2004) and Vice-Chair (2004-2013) of the Commission on Civil Rights Dr. Abigail M. Thernstrom, said: “I am in complete agreement with the Competitive Enterprise Institute’s view as to the current legal status of the U.S. Commission on Civil Rights.”

Former Commissioner (2008-2013) Todd F. Gaziano, said: “The issue relating to the Commission’s continued authority to operate is serious, and I am chagrined that I didn’t notice it while I was serving as a Commissioner. Even if the Commission can operate with an annual appropriation alone, however, no one should question the need for Congress to update its organic statute to make it more effective.”